Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v McCain Foods (Aust) Pty Ltd

[2025] FWC 1860

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v

McCain Foods (Aust) Pty Ltd

(B2025/1066)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 30 JUNE 2025

Proposed protected action ballot of employees of McCain Foods (Aust) Pty Ltd – Ballarat Maintenance.

This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of (CEPU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of McCain Foods (Aust) Pty Ltd (McCain or Employer).

I note that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) have made a separate application for a protected action ballot order in relation to the same proposed agreement.[1]

On 30 June 2025, the Commission was advised that the Employer, in effect, did not object to the Application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Aaron Douglass, Organiser, setting out the steps taken by the CEPU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with McCain. I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by Vero Engagement & Voting Solutions Pty Ltd (Vero). Vero has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 14 July 2025.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR788737.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matter. To the extent that this matter involves any additional bargaining representatives, that Member will also issue an Order requiring their attendance in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] B2025/1063.

[2] This is, in effect, 10 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) for a protected action ballot order concerning certain employees of McCain Foods (Aust) Pty Ltd. The application was lodged under section 437 of the Fair Work Act 2009. The matter was heard and determined by Deputy President Hampton of the Fair Work Commission. McCain Foods (Aust) Pty Ltd did not object to the application, leading the Commission to decide on the matter based on the submitted documents.

The primary legal issue the Court addressed was whether the CEPU met all the requirements under section 443(1) of the Fair Work Act to conduct a protected action ballot. The CEPU needed to demonstrate that it had genuinely tried to reach an agreement with the employer and that the notification period for the proposed agreement had been met. Additionally, the Court needed to ensure that Vero Engagement & Voting Solutions Pty Ltd, the appointed ballot agent, was eligible under section 468A of the Act to conduct the ballot. The determination of the closing date for voting was also crucial, as it set the ballot period under section 448A(2) of the Act.

The Court concluded that the CEPU had genuinely attempted to negotiate with McCain Foods (Aust) Pty Ltd and that all procedural requirements were fulfilled. Consequently, the Deputy President Hampton determined the closing date for the ballot to be 14 July 2025, which aligns with the requested 10 working days from the issuance of the order. An Order was issued for the conduct of the ballot and a compulsory conciliation conference, with another Commission member designated to oversee these processes. The Court also highlighted the importance of having all relevant bargaining representatives present at the conference to facilitate meaningful negotiations.

The final orders established the ballot process and set the timeline for the compulsory conciliation conference, ensuring that all parties were ready to engage in negotiations. This decision underscored the Fair Work Commission's role in facilitating fair and effective industrial relations processes.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established